What’s going on in iowa?


Most of you probably think I am usually left-of-center in my discussion of First Amendment issues in public education, so today I will shift right-of-center and discuss the conflict between anti-discrimination/harassment policies and the First Amendment rights of students, particularly at the higher education levels.  In the attached article, the Des Moines Register chronicles issues going on at three different public universities, where students on the right of the political spectrum claim that their universities have violated their First Amendment rights by enforcing anti-discrimination/harassment policies against them personally, or their organizations generally. 

According to the article, “Iowa State University took ‘corrective action’ in August after a professor’s syllabus prohibited students from submitting material that opposed Black Lives Matter, gay marriage, abortion and other topics.”  Students at the University of Northern Iowa complained that their…

Espinoza and School Vouchers: A (Long) Summary

Espinoza v. Montana Department of Revenue
So I did not get to do my NPR interview, which would certainly have made me wildly famous.  But since I spent a significant amount of time reading the briefs and then the seven (!!) different opinions in the case, I figured I would spend a little more time summarizing the opinion than I might otherwise.
I start with a caveat:  while as a public education advocate I am not a real big fan of the outcome of this case, I always try, as an attorney, to keep my focus on the legal discussions in a case.  It may surprise some (maybe not) to learn that while I am very happy with the outcome of the Bostock (LGBTQ Title VII) case, there are some aspects of Justice Gorsuch’s majority opinion that I find somewhat dubious (from a legal viewpoint), and I think…

Fundamental? Not now….

So after weeks of procedural machinations in Gary B., et al. v. Whitmer -- the Sixth Circuit case arising out of a challenge to conditions at some of Detroit, Michigan’s worst-performing public schools, in which a panel of the Sixth Circuit ruled that students have a fundamental constitutional right to a "basic minimum education" -- what appeared destined to be the next great Supreme Court education case has ended with a fizzle.
As the Sixth Circuit was preparing to hear the case en banc (i.e by all the judges on the court), Michigan's Democratic governor yanked the rug out from under her own side of the lawsuit by abruptly settling with the Plaintiffs.  Although the Republican legislature then tried to intervene to keep the case alive, so that the full Sixth Circuit court could review the panel's first-ever ruling that a fundamental

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Churches are not Grocery Stores

Friday night, the Supreme Court denied an application by a California church challenging California’s COVID-19 restrictions on churches.  In South Bay United Pentecostal Church v. Newsom, the church claimed that Governor Newsom engaged in religious discrimination by limiting attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower, but allowing businesses like grocery stores to operate under looser guidelines.  The Court split 4-1-4 over whether to enjoin the California restrictions, with Justices Thomas, Alito, Gorsuch and Kavanaugh dissenting from the denial (in other words, they would have granted the application and enjoined the law).  The split on the Court was over what churches more resembled:  grocery stores, or movie theaters?
Kavanaugh, writing for himself, Thomas and Gorsuch (Justice Alito, curiously, did not join the written dissent), agreed that “California undoubtedly has a compelling interest in combating the spread of…

A Fundamental Right to Education

As promised, here is my analysis of the Detroit "right to an education" case, in more detail.  This is probably more than the average layperson wants to read, but some of you may find it interesting.
The Fundamental (?) Right to Education
 Gary B., et al. v. Whitmer, ___ F.3d ___, 2020 WL 1951894 (6th Cir. 2020)

“Access to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be ‘implicit in the concept of ordered liberty.’  In short, without the literacy provided by a basic minimum education, it is impossible to participate in our democracy.”  Id. at *21 (internal citations omitted).

Gary B. arose out of a challenge to conditions at some of Detroit, Michigan’s worst-performing public schools.  The Detroit Public Schools (“DPS”) has been under some form of state control or management…